In the withdrawn opinion, the majority focused on the common
sense definition of “drug trafficking offense.” The Moncrieffe
court reiterated the Supreme Court’s previous recognition that “the everyday
understanding of ‘trafficking’ . . . ordinarily means some sort of commercial
dealing.”Since the Georgia PWID statute
does not require remuneration, the Martinez-Lugo
majority in the withdrawn opinion found that it was not categorically a
DTO.

In the new opinion, the majority focuses on the elements of
a federal drug trafficking offense and compares them, rather than the Moncrieffe definition of “trafficking,”
to the Georgia PWID statute.Moncrieffe recognized that the elements
of Georgia PWID and PWID under the Controlled Substances Act (CSA) are the
same.The only reason Georgia PWID is
not an aggravated felony is that the distribution of a small amount of
marijuana for no remuneration is a misdemeanor under the CSA, and only CSA
felonies would be an aggravated felony.In contrast, § 2L1.2
does not require that an offense be a CSA felony in order to be a DTO.

The new Martinez-Lugo majority
opinion claims Martinez-Lugo never argued that the elements of Georgia PWID
differ from the elements of the generic, contemporary PWID offense but instead
argued that Moncrieffe controls.The majority “decline[s] to extend Moncrieffe to the different scheme
embodied in the Guidelines absent clear direction to do so. . . . Under a
straightforward application of the categorical approach, the Georgia offense
under which Martinez-Lugo was convicted has the same elements as the generic
possession with intent to distribute offense.”

Judge Dennis dissents.He interprets Moncrieffe as
making clear that the generic definition of a “trafficking” does not include
sharing a small amount of marijuana for no remuneration.The CSA recognizes this by treating such an
offense as a misdemeanor simple possession.Since the categorical approach requires a court to examine the least
culpable act punishable under a statute, which would include sharing a small
amount of marijuana for no remuneration, Georgia PWID is not a § 2L1.2 DTO.Judge Dennis also criticizes the “ironic and
illogical inconsistency” that, under the majority’s decision, Martinez-Lugo
receives a 16-level enhancement for a DTO but would not be subject to the
8-level enhancement for an aggravated felony.

Note:This is the
second time in three years that a Fifth Circuit panel initially resolved a § 2L1.2 DTO issue in favor of the
defendant and then withdrew the opinion and entered an opinion affirming the
enhancement.SeeUnited
States v. Rodriguez-Escareno,
700 F.3d 751, 753 (5th Cir. 2012)
(superseding prior opinion that held conspiracy to distribute meth was not a
DTO).

180+ Day Incarceration, Regardless of Nature of Offense, Negates “Good Moral Character” for Non-LPR Cancellation of Removal; GMC Period Ends Upon Final Administrative Decision

This case involves the statutory interpretation of the
good moral character (GMC) requirement, 8 U.S.C. § 1101(f)(7), for non-LPR
cancellation of removal, 8 U.S.C. § 1229b(b)(1).Rodriguez-Avalos is a Mexican citizen who
entered the United States without being admitted or paroled in April 1999.He was living in Nebraska when he was
interviewed by a Department of Homeland Security (DHS) agent in connection with
an identity theft investigation of the grocery store where Rodriguez-Avalos
worked.He admitted to having no
documentation enter or work in the United States, and he was arrested that day
and served with a Notice to Appear (NTA)—May 3, 2011.

Criminal
Case: Following the arrest, Rodriguez-Avalos was indicted
with falsely and willfully representing himself to be a U.S. citizen in
violation of 18 U.S.C. § 911. He pled
guilty and, on January 18, 2012, he was sentenced to 14 months of imprisonment
and served approximately 7 months before being released.

Immigration
Case: Rodriguez-Avalos was “formally” served with the NTA
on November 28, 2012.He subsequently
appeared in immigration court and conceded his removability but applied for
cancellation of removal.Section
1229b(b)(1), or non-LPR cancellation require 10 years of physical presence
“immediately preceding the date of such application”; “good moral character
during such period”; no convictions for a crime involving moral turpitude
(CIMT), controlled substance offense, or aggravated felony; and a showing that
removal would result in exceptional and extremely unusual hardship to U.S.
citizen (USC) or lawful permanent resident (LPR) spouse, parent, or child.See §
1229b(b)(1).Section 1101(f)(7) defines
“good moral character” in part as requiring no confinement, as a result of
conviction, to a penal institution for an aggregate period of 180 days or more during
the GMC period.

Is Rodriguez-Avalos still eligible for non-LPR
cancellation if he was confined for 7 months due to a § 911 conviction within
the 10 years prior to applying for cancellation?Not according to the immigration judge, the
Board of Immigration Appeals, or the Fifth Circuit panel.

Rodriguez-Avalos
presented two arguments:

1)His
§ 911 conviction is not a CIMT and, thus, his incarceration should not preclude
him from establishing GMC.

2)His
prison term fell outside of the relevant time period because of the stop-time
rule, 8 U.S.C § 1229b(d)(1), which ends the 10-year period when an NTA is served
upon the petitioner

The
panel rejected both arguments:

“[A]pplying the Skidmore
standard, the BIA did not err in concluding that a petitioner cannot
establish good moral character if he has been incarcerated for 180 days or
more, regardless of the nature of the underlying crime of conviction.”The BIA’s conclusion was a plain reading of
the text, and such a reading is consistent with Fifth Circuit precedent.

“[T]he BIA’s interpretation of Section 1229b(b)(1) as
requiring a petitioner to establish good moral character during the ten-years
immediately preceding the final administrative decision regarding the
petitioner’s application for cancellation of removal is entitled to deference
under Chevron.”See Inre
Ortega-Cabrera, 23 I & N Dec. 793, 798 (BIA 2005).The panel rejects Rodriguez-Avalos’ argument
that the 10-year GMC period must mirror the 10-year physical presence period
which stops upon the service of the NTA.The BIA determined that extending the GMC period to the final administrative
decision best comported with congressional intent because it would allow for
consideration of any false testimony during the proceeding, see § 1101(f)(6), and allow the
immigration judge to determine the petitioner’s most recent behavior.

How
does this affect criminal defense attorneys? It’s one more immigration consequence to add
to your checklist. If your client is otherwise eligible for non-LPR cancellation
of removal (10-year physical presence in US, GMC, no disqualifying convictions,
and has USC/LPR qualifying relatives for whom your client’s removal could
arguably result in extreme and unusual hardship), be aware that confinement of
180 days or more after a conviction—regardless the nature of the offense—will
make him or her ineligible.Fight for
pretrial release, a sentence less than 180 days, and definitely advise your
client of the consequences of the conviction and a 180+ day sentence.

Other
consequences?The panel’s interpretation of § 1101(f)(7) is in the context of § 1229b(b)(1).Nevertheless, this opinion could impact the
analysis of the 180-day incarceration analysis in any other GMC context, such
as naturalization and VAWA relief.Also,
note the panel did not decide the issue by finding § 911 to be a CIMT.